The Curious Case of the Animal in the Nighttime

North Carolina Lawyer's WeeklyBy: David Donovan January 28, 2014

One night in May 2010, a sheriff’s deputy in Transylvania County pulled over Audra Smathers to see if she was all right after her Corvette struck an animal that had darted out in the road. She was physically fine, emotionally shaken —and, as it turned out, drunk.

Now, because of that chance encounter, the North Carolina Court of Appeals has approved a new doctrine that allows police officers to pull over drivers, even without reasonable suspicion or probable cause, if the stop is part of an officer’s “community caretaking.”

Sheriff’s deputy Brian Kreigsman was driving behind Smathers that evening, observing nothing illegal or suspicious about her driving. When Smathers ran over the animal, the impact caused her car to bounce and produce sparks as it scraped the road. Kreigsman activated his blue lights and siren to pull over the car to make sure everyone was okay.

Smathers continued for another mile or so before stopping. (Prosecutors conceded that this was neither unusual nor suspicious in Transylvania County due to the prevalence of “blue lights bandits” there.) When Kreigsman finally approached her, he smelled the odor of alcohol and observed that Smathers had glassy eyes and slurred speech. She would eventually plead guilty to driving while impaired.

On appeal, Smathers argued that the trial court should have suppressed the evidence gathered from the stop because, as prosecutors also conceded, Kreigsman had neither probable cause nor reasonable suspicion to detain her. However, the state asked the Court of Appeals to apply the “community caretaking” doctrine recognized in many other states in order to justify the stop. The appeals court agreed and for the first time formally adopted the doctrine in North Carolina.

Public interest or intrusion?

The doctrine, first created by the U.S. Supreme Court in 1973, recognizes that law enforcement officers often interact with citizens in many ways beyond investigating criminal conduct, most notably in a general safety and welfare role to help citizens who may be in peril or need of assistance. In these situations, government intrusion into individual privacy for the purposes of rendering aid is deemed reasonable, regardless of whether criminal activity is afoot.

Most states have adopted the doctrine, although different states employ different tests to determine whether a traffic stop is reasonable. The North Carolina court said it needed a test that would strike a proper balance between the public’s interest in having officers help citizens when needed and the individual’s interest in being free from unreasonable governmental intrusion. The court cautioned that this exception to constitutional protections against unreasonable searches should not serve as pretext for impermissible investigation.

Some states have adopted tests that include both objective and subjective elements, allowing a search or seizure only if the officer’s motivation is not primarily related to criminal investigation. But the Court of Appeals, citing recent decisions by the state’s Supreme Court forsaking consideration of an officer’s subjective motivation, instead opted for the entirely objective test crafted by the courts of Wisconsin in which a search may be permitted even if an officer also has law enforcement concerns.

“The public safety concerns which underlie the community caretaking exception are not mutually exclusive of criminal prevention and investigation, and therefore we decline to formulate a test where existence of the latter negates the former,” Judge Robert C. Hunter wrote for a unanimous court.

Under the three-pronged test adopted by the court, if the state wants to justify a search under the community caretaking doctrine, it has the burden of proving that a search or seizure within the meaning of the Fourth Amendment has occurred; if so, that under the totality of the circumstances an objectively reasonable basis for a community caretaking function is shown; and if so, that the public need or interest outweighs the intrusion upon the privacy of the individual.

More power to police

Many states use similar balancing tests, but the court declined to mimic those which hold that only imminent danger to life or limb can outweigh an individual’s privacy interest. The court said that such a rule might prevent aid when danger to life and limb, though not imminent, could be prevented by swift action. Nevertheless, the Court of Appeals agreed with many courts that the exception should be applied narrowly and carefully to mitigate the risk of abuse.

Applying the new test to the facts of Smathers’ case, the court found that although several factors supported Smathers’ argument, the stop still fit within the new exception because the public need and interest outweighed her privacy interest in being free from government seizure.

The decision is the latest in a string of wins for the state in cases against drunk drivers. The state Supreme Court ruled in 2012 in State v. Heien that a traffic stop was permissible even though the officer was mistaken about whether the driver was breaking any laws. That same year the Supreme Court OK’d a traffic stop after a driver was weaving, but only within her own lane.

Marcus Hill, a criminal defense attorney in Durham who was not involved in the case, expressed concerns that, in practice, the exception could end up being a significant expansion of the police power.

“I think it’s going to give the police significantly more power and I think it’ll bring more people into court because for some reason we’ve abandoned the reasonable suspicion standard we’ve been using and come up with a new, especially large exception,” Hill said. “It does seem like it could be a gigantic hole you could drive through and entirely ignore the Fourth Amendment. I am by nature an optimist, but this scares me.”